Dismissal on grounds of ill health: employers must first implement measures agreed as part of the BEM process

Before dismissing an employee on grounds of ill health, employers must generally give the employee an opportunity actually to take the measures identified as appropriate in the course of workplace integration management (betriebliches Eingliederungsmanagement, BEM). If an employer terminates the BEM process prematurely and dismisses the employee without implementing the agreed measures, the dismissal is disproportionate and therefore socially unjustified, irrespective of whether there is a negative prognosis as to the employee’s future health.

Facts

A bus driver working shifts had significant levels of absence over a number of years, including more than 100 days of sickness absence in several years. During the BEM meeting, the parties agreed specific measures, including an occupational health assessment, a digital health course, improvements to hygiene and the preparation of an action plan with deadlines. The bus driver attended the occupational health appointment. At the beginning of February, the employer sent him access details by email and, after receiving no response, reminded him again three days later, on a Friday. When she had still not heard from him by Monday, she terminated the BEM process on the ground of a lack of cooperation, consulted the works council on Tuesday and dismissed him on grounds of ill health. No action plan setting out deadlines had ever been drawn up and the agreed measures had not been implemented. The Celle Labour Court upheld the bus driver’s unfair dismissal claim.

The decision

The Lower Saxony Higher Labor Court confirmed that the termination was invalid. Under Section 1(2) of the Unfair Dismissal Protection Act, termination due to illness is justified only if it is proportionate—that is, if no less severe measures are available. Section 167(2) of Book Nine of the Social Code specifies this principle of proportionality: The BEM serves precisely to identify and develop less severe measures than termination.

Where specific measures are identified as appropriate during the BEM process, the employer must generally also give the employee an opportunity to implement them before dismissal. That had not happened here: the employer had terminated the process after only a few days, even though the driver had cooperated and attended the occupational health appointment. A brief failure to respond to two emails does not justify terminating the process for lack of cooperation.

Practical implications

BEM is not merely a formality to be completed before dismissal. An employer that initiates a BEM process and agrees measures in that process must allow those measures to be implemented and await the outcome. Prematurely terminating the process, particularly where the employee is generally cooperating, may render a dismissal on grounds of ill health open to challenge even where sickness absence is substantial. The employer bears the burden of pleading and proving that implementing the measures would not have prevented the dismissal.

Practical tip

Employers should draw up a written action plan as part of the BEM process, setting realistic deadlines, document the implementation of the measures and await their effects. If the employee fails to cooperate, it is advisable to set a reasonable further deadline and draw the employee’s attention to the possible consequences before terminating the BEM process. Only then should a decision be taken on dismissal on grounds of ill health.